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Sexual Harassment in the Workplace: the Loophole Exposing Western Australia’S Parliament JACINTA WRIGHT*

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Sexual Harassment in the Workplace: the Loophole Exposing Western Australia’S Parliament JACINTA WRIGHT* J Wright Sexual Harassment in the Workplace Sexual Harassment in the Workplace: The Loophole Exposing Western Australia’s Parliament JACINTA WRIGHT* Sexual harassment remains a serious problem in Australian workplaces. Recent statistics gathered by the Australian Human Rights Commission indicate that workplace sexual harassment is rarely a one-off incident and can have a significant impact on an employee’s productivity and emotional wellbeing. Employees can also feel as though they are being victimized and deserted by their friends and colleagues. Despite awareness of the negative impacts caused by sexual harassment, Australia’s Federal, State and Territory legislation concerning sexual harassment remains largely inadequate. At best, sexual harassment is prohibited between certain workplace participants and in certain employment situations. At worst, in some employment situations it is not regulated at all. For example, an alleged incident of sexual harassment involving a Western Australian Member of Parliament helped expose a significant loophole in Western Australia’s Equal Opportunity Act 1984. This loophole omits parliamentary staff from the operation and protection of workplace sexual harassment legislation. This is a serious legislative oversight. The introduction of the Equal Opportunity (Members of Parliament) Amendment Bill 2010 (WA) has again brought this issue into the public spotlight. This paper argues that while the Equal Opportunity (Members of Parliament) Amendment Bill 2010 goes some way toward addressing the issue of sexual harassment in Parliament, it fails to take into account proposals which have been put forward which appear to substantially advance and strengthen the definition of sexual harassment and enhance its coverage. These proposals include: extending the prohibition to other persons with whom a worker ‘comes into contact during their employment’; ensuring the State of Western Australia can be made vicariously liable for sexual harassment in government employment; and removing from Members of Parliament, the ability to invoke parliamentary privilege as a defence to sexual harassment. This paper discusses various other general recommendations for reform which would be more effective in preventing sexual harassment and concludes by arguing that sexual harassment should be outlawed in its entirety in employment relationships I INTRODUCTION Initially, claims of sexual harassment were treated as ‘trivial complaints about inharmonious working relationships, gripes about the personal proclivities of male workers that were unrelated to employers’ responsibility, or whining about what was the inevitable sexual attractions that result from men and women working together’.1 However, the acceptance of sexual harassment as a form of sex discrimination in America in the 1970s had a profound influence on Australia. By the mid to late 1980s Australian courts had also become more receptive to the notion that there was a connection between unwanted sexual advances and sex discrimination.2 And upon *Jacinta Wright, LLB (Hons), Murdoch University. Dedicated in loving memory to my dad, Terrence Wright. This paper was submitted as an honours thesis at Murdoch University in 2010. I would like to thank my supervisor Michelle Evans, for her comments on the draft of this paper and Mr Martin Whitely, Member for Bassendean for the Australian Labor Party, for allowing me to conduct an interview with him regarding his private member’s Bill entitled the Equal Opportunity (Members of Parliament) Amendment Bill 2010. 1 Catharine MacKinnon and Reva Siegel, Directions in Sexual Harassment Law (Yale University Press, 2004) 170. 2 Ibid. eLaw Journal: Murdoch University Electronic Journal of Law (2010) 17(2) 50 J Wright Sexual Harassment in the Workplace the enactment of the Sex Discrimination Act 1984 (Cth) (‘SDA’), sexual harassment became a legally recognized form of sex discrimination in Australia.3 Despite sexual harassment being unlawful for more than 25 years, it is still a persistent problem in Australian workplaces.4 In 2008 the Human Rights and Equal Opportunity Commission (now known as the Australian Human Rights Commission) conducted a national telephone survey of 2005 randomly selected people aged between 18 and 64. The survey found that 65% of those surveyed had experienced sexual harassment in the workplace compared with 28% (the next highest percentage) who had experienced sexual harassment elsewhere in public life.5 Despite this, in Western Australia the legislative prohibition against sexual harassment in employment only covers certain workplace participants and employment situations. Employees working within the judicial, legislative and executive arms of the State Government are among those excluded from this protection. The prevalence of sexual harassment as an issue in Australian workplaces is illustrated by the following case. As recently as 2 August 2010 it was reported by the Sydney Morning Herald that a junior publicist had lodged a claim in the Federal Court against David Jones and the company’s former chief executive, Mark McInnes, alleging sexual harassment. Ms Kristy Fraser-Kirk alleged Mr McInnes made unwelcome comments of a sexual nature and unwelcome sexual advances towards her at a work related lunch function and had repeatedly requested her to accompany him to his residence.6 This case attracted significant public interest because Ms Fraser-Kirk sued for damages based upon 5% of the profits made by David Jones and 5% of Mr McInnes’ salary while he worked for the company, which cumulatively amounted to $37 million dollars.7 This remains the largest amount of damages claimed in any sexual harassment case in Australia. This case was brought to an end on 15 October 2010 when the parties reached a confidential settlement expected to be in the region of a six figure sum, in full and final satisfaction of all outstanding claims between them.8 Numerous incidents have occurred over the years and again this illustrates that sexual harassment remains an ongoing issue. Sexual harassment also occurs in government employment and is often perpetrated by the people who are expected to set an example for others.9 When a sexual harassment issue arises in government employment it is often made public due to the nature of the perpetrator’s employment position and their public profile. 3 Human Rights and Equal Opportunity Commission, The Challenges Continue … Sexual Harassment in the Workplace (March 2004) 6. 4 Anita Mackay, ‘Recent Developments in Sexual Harassment Law: Towards a New Model’ (2009) 14 Deakin Law Review 189, 189. 5 Human Rights and Equal Opportunity Commission, Sexual Harassment: Serious Business (2008) 12. 6 Bellinda Kontominas, ‘David Jones Sex Harassment Cases: Publicist Sues for $37m’, The Sydney Morning Herald (online), 2 August 2010 <http://www.smh.com.au/business/david-jones-sex-harassment- case-publicist-sues-for-37m-20100802-112iw.html>. 7 Ibid. 8 Tim Vollmer, ‘David Jones Sexual Harassment Case Settled - Kristy's smile is worth $850K’, The Daily Telegraph (online), 15 October 2010 < http://www.dailytelegraph.com.au/news/nsw-act/david-jones- sexual-harassment-case-settled/story-e6freuzi-1225939386247>. 9 For the purposes of this paper the term ‘government employee’ or a person employed in ‘government employment’ is taken to include people employed as Members of Parliament, people working under the supervision of Members of Parliament or officers or people employed in administrative capacities within the precincts of Parliament House. eLaw Journal: Murdoch University Electronic Journal of Law (2010) 17(2) 51 J Wright Sexual Harassment in the Workplace To demonstrate this, in 2005 Mr Troy Buswell, a former Western Australian Opposition Leader, admitted to sniffing a chair upon which a parliamentary policy officer had earlier been sitting, whilst making sexually gratifying noises.10 In 2007 Mr Richard Dalla-Riva, a former Victorian Member of Parliament, resigned from the shadow cabinet after sending inappropriate messages to a teenage party worker.11 And in 2008, Mr Fran Logan, a former Western Australian Energy Minister, resigned after revelations he propositioned a government adviser to take part in a threesome.12 Subject to some statutory exceptions (which will be discussed in detail in this paper), a person wanting to lodge a complaint for workplace sexual harassment may do so under the SDA or the relevant legislation in their State or Territory.13 For a complaint to be made, the sexual harassment must occur in an employment context and legislative protection will only be afforded subject to an employment relationship existing between the parties. However, the types of employment relationships covered by each State and Territory vary considerably. Therefore, unless the type of employment relationship between the perpetrator and complainant is expressly provided for in the Commonwealth or relevant State or Territory legislation, the complainant will be unable to bring a claim for sexual harassment against the perpetrator. For example, Ms Fraser-Kirk was able to bring a claim against Mr McInnes and vicariously against his employer, David Jones, because both the SDA and Anti-Discrimination Act 1977 (NSW) expressly prohibit sexual harassment between employers and employees, and between workplace participants at a place that is a workplace of both those persons.14 However, the complainant of the alleged sexual harassment by Mr Buswell had no actionable claim because the Equal Opportunity Act
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